James Neff Kramper Family v. Ibp, Inc.

• Decision Date: 07 January 2005
• Docket Number: No. 03-1870.,03-1870.
• Citation: 393 F.3d 828
• Parties: JAMES NEFF KRAMPER FAMILY FARM PARTNERSHIP, Appellant, v. IBP, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

393 F.3d 828

JAMES NEFF KRAMPER FAMILY FARM PARTNERSHIP, Appellant, v. IBP, INC., Appellee.

No. 03-1870.

United States Court of Appeals, Eighth Circuit.

Submitted: October 24, 2003.

Filed: January 7, 2005.

COPYRIGHT MATERIAL OMITTED

Gregory N. Lohr, Sioux City, Iowa, for appellant.

Steven D. Davidson, Omaha, Nebraska, for appellee.

Before BYE, HANSEN and MELLOY, Circuit Judges.

BYE, Circuit Judge.

James Neff Kramper Family Farm Partnership (Kramper), a Nebraska landowner, is alleging IBP, Inc. trespassed on its farmland by placing an air monitoring device and groundwater well (collectively the monitoring station) six feet onto the land in question. The case originated in Nebraska state court and was removed to federal court by IBP.

Raising the issue of jurisdiction sua sponte, Boatmen's First Nat'l Bank of Kansas City v. Kan. Pub. Employees Ret. Sys., 57 F.3d 638, 640 n. 4 (8th Cir.1995), we conclude it "appears to a legal certainty that the claim is really for less than the jurisdictional amount." Kopp v. Kopp, 280 F.3d 883, 884 (8th Cir.2002) (internal citations and quotations omitted). We therefore lack jurisdiction, and have no choice but to remand it to the district court with directions to remand to state court pursuant to 28 U.S.C. § 1447(c).

I

In August of 2000, IBP placed the monitoring station in a Dakota County ditch adjacent to a county road known as C Avenue, first established in 1894. The monitoring station measures approximately twelve square feet. In locating the monitoring station, IBP relied on the county's measurements of its right of way, which was determined to be thirty-three feet from the current center line of C Avenue. Kramper's claim arises from the fact that over time C Avenue has wandered slightly from the historical section line. If the county's right of way is measured from the historical section line rather than from the center of the road, the monitoring station is six feet onto Kramper's land.

Kramper sued IBP in Nebraska state court alleging IBP trespassed on its land. Kramper did not allege an amount in controversy, but did file a claim with Dakota County over the same alleged trespass demanding compensation "in the amount of $275,000." App. at 8. In its notice of removal to federal court, IBP relied upon Kramper's $275,000 demand to the county as the basis for claiming the amount in controversy between itself and Kramper exceeded $75,000. App. at 5.

After removing the case to federal court, IBP filed a motion for summary judgment. The district court granted IBP's motion for summary judgment and dismissed Kramper's claim on two grounds. First, interpreting scarce Nebraska law on the issue, the district court determined Dakota County's right of way should be measured from the current center line of C Avenue rather than from the historical section line, and thus no trespass occurred. In the alternative, the district court determined the amount of alleged damage was only $22.50, "not even one-sixth the filing fee necessary to commence an action in this Court," Add. at 8, and an insufficient amount to support an actionable trespass claim under Nebraska law. See Hallowell v. Borchers, 150 Neb. 322, 34 N.W.2d 404, 412 (1948) (affirming a trial court's dismissal of a trespass claim where the "damage was of such trivial significance that no recovery should be had").

After Kramper appealed, we questioned whether the $275,000 amount originally alleged at the time of removal was legitimate. We do not assume the claimed amount is the actual amount in controversy if "the court questions whether the amount alleged is legitimate, [for then] the party invoking federal jurisdiction must prove the requisite amount by a preponderance of the evidence." Missouri ex rel. Pemiscot County v. W. Sur. Co., 51 F.3d 170, 173 (8th Cir.1995) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). This rule applies even in a removed case where the party invoking jurisdiction is the defendant. See, e.g., In re Minn. Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 834 (8th Cir.2003) (applying the rule in a removed case).

We ordered the parties to submit supplemental briefing on the question of jurisdiction. The burden thereafter fell upon IBP, as the party invoking federal jurisdiction, to show by a preponderance of the evidence the claims originally asserted by Kramper could, that is might, legally satisfy the amount in controversy requirement. Kopp, 280 F.3d at 885. After reviewing the record in this case, as well as the parties' supplemental briefs, it is clear no evidence, much less a preponderance, supports the legitimacy of a claim exceeding $75,000. Thus, it is legally certain the claim is really for less than the jurisdictional amount, and the district court should have dismissed the federal action and remanded the case to state court rather than addressing the trespass claim on the merits. See Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.").

II

It is undisputed the amount of land directly affected by the alleged trespass was 6' x 12' (or 1/605 of an acre). Kramper alleged it lost the use of that tract for three growing seasons. In the summary judgment proceedings before the district court, IBP presented expert testimony that the rental value of that amount of land was $7.50 per growing season. Kramper failed to offer any evidence to rebut IBP's expert testimony. Thus, it is undisputed the total damages for the land directly affected by the alleged trespass were at most $22.50. See Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 515 N.W.2d 401, 411 (1994) ("The appropriate measure of damages for the... landowner's loss [is the] injury to the property's potential for producing income or an expected profit.").

Kramper's claim of additional damage was based upon two factors. First, it alleged an infringement on ingress and egress, claiming the monitoring station blocked one field approach to the land (which consisted of 152 1/2 acres) and thus disrupted its tenant's farming operation with respect to the entire field. The record refutes this claim. Even though the monitoring station allegedly blocked one field approach, Kramper's farm tenant testified he continued to enjoy access at all four corners of the property. App. at 139. Indeed, the monitoring station was located at the southeast corner of the field, and the tenant testified he could still access the field even at that corner. App. at 143. Thus, the allegedly blocked field approach had no effect on ingress and egress. Furthermore, the county offered to build a new field approach, which would have taken "at most a half an hour's worth of work of the motor grader [because] there was hardly no ditch there. You wouldn't have had to put [any] fill in." App. at 154. The photographs in the appendix support the county's claim, showing the "ditch" is essentially the same level as the adjacent county road, and that access to the land could have been gained almost anywhere along the "ditch" in issue. App. at 126-28. It was not as if Kramper's field was an impenetrable medieval castle surrounded by a moat, and IBP destroyed the only drawbridge.

The photos further discredit Kramper's claim that the monitoring station disrupted the tenant's farming operation. One photo shows the field edge of the monitoring station essentially on the same line as utility poles running down the ditch, but perhaps a foot or two closer to the field than the poles. The photo also shows corn planted in the field; the corn is the same distance away from the poles all along the edge of the field, that is, whoever planted the corn did not "swerve out" to avoid the monitoring station. App. at 126. In other words, the monitoring station caused no more disruption to the tenant's ability to farm the edge of the field than did the utility poles in the ditch, which were there before the monitoring station. There is simply no genuine factual dispute about whether the alleged trespass affected anything more than the sandbox-sized square of land actually covered by the monitoring station.

Second, Kramper claimed it was unable to sell its property at fair market value due to the existence of the groundwater well. As the district court noted, however, Kramper did not support this conclusory allegation with any actual facts, "such as the existence of a potential buyer, [Kramper's] readiness to sell, and the effect, if any, on any potential sale [after] the return of the well area to its natural condition following the abandonment of the well." Add. at 8. Kramper offered no evidence of the cost of removing the well. Nor did Kramper offer any evidence of the specific amount the presence of the well reduced the fair market value of the area of land actually affected by the well. Instead, Kramper relied solely upon its allegation the presence of the groundwater well damaged it "in the amount of $6,840,000.00," App. at 124, or the amount obtained by multiplying the entire acreage (152 acres) times Kramper's estimate of the...